29
Exhibit 10.48
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
as of February 2nd, 1998, by and between XXXXXX XXXXXX CONSULTING, INC., a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxxx ("Employee").
WHEREAS, pursuant to that certain Agreement and Plan of Merger
(the "Merger Agreement") dated as of the date hereof among TB&A GROUP, INC., a
Delaware corporation ("TB&A"), XXXXXX XXXXXX, INC., a Delaware corporation
("Xxxxxx Bailly"), and XXXXXX XXXXXX ACQUISITION CORP. 1998-1, a Delaware
corporation and wholly-owned subsidiary of Xxxxxx Bailly ("Merger Sub"), Merger
Sub will merge with and into TB&A (the "Merger"), and Xxxxxx Xxxxxx will acquire
one hundred percent (100%) of the common stock of TB&A, including the common
stock of TB&A owned by the Employee, in exchange for shares of common stock of
Xxxxxx Bailly ("Common Stock");
WHEREAS, as an inducement to Xxxxxx Xxxxxx to enter into the
Merger Agreement and as a condition precedent to Xxxxxx Bailly's obligations
under the Merger Agreement, Employee has agreed to execute and deliver this
Agreement and to terminate, effective as of the effective time of the Merger,
any prior employment agreements or arrangements with TB&A;
WHEREAS, the Company is a wholly-owned subsidiary of Xxxxxx Xxxxxx;
WHEREAS, the Company desires to employ Employee, and Employee
desires to be employed by the Company, from and after the effective time of the
Merger on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto hereby
agree as follows:
1. Employment.
On the terms and conditions set forth in this Agreement, the Company
agrees to employ Employee and Employee agrees to be employed by the
Company for the term set forth in Section 2 hereof and in the position
and with the duties set forth in
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Section 3 hereof.
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2. Term.
The term of this Agreement shall commence as of the
effective time of the Merger (the "Commencement Date")
and shall end on the third anniversary of the date hereof, unless sooner
terminated pursuant to Section 6 hereof (the "Term").
3. Position and Duties.
Employee shall serve as Chief Operating Officer and Senior Vice President
of the Company and the Company shall cause Employee to become, and
Employee shall serve as, President of TB&A or such other position as
may, from time to time, be prescribed by the Chief Executive Officer
and Board of Directors of the Company (the "Board of Directors") or
any of its affiliates and agreed to by Employee.
Employee agrees to serve the Company faithfully and to the best of his
ability; to devote his time, energy and skill during regular business
hours (except for illness or incapacity and except for vacation time
as provided herein) to such employment; to use his best efforts,
skills and ability to promote the Company's interests; if elected, to
serve as a director of the Company and its subsidiaries or affiliated
corporations or entities; to perform such duties and responsibilities
as from time to time may be assigned to him by the Chief Executive
Officer and the Board of Directors, which duties shall be consistent
with his positions as set forth in the preceding paragraph.
4. Compensation.
The Company agrees to pay Employee, either directly or through one of its
affiliates, as compensation for all duties performed by him in any
capacity during the period of his employment under this Agreement:
(a) an annual base salary ("Base Salary"), payable in equal installments twice
monthly to Employee, at the rate of $120,000 per year commencing on the
Commencement Date through December 31, 1998. Commencing January 1, 1999 and for
the remainder of the Term, the annual rate of Base Salary shall be determined by
management of the Company in accordance with the compensation policies of the
Company for officers of comparable rank;
(b) a bonus payment ("Bonus") for the calendar year 1998, in an amount, if any,
determined by management of the Company in accordance with the compensation
policies of TB&A as set forth in Appendix A attached hereto; for calendar year
1999 and each calendar year during the Term, a Bonus, in an amount, if any,
determined by management of the Company in accordance with the compensation
policies of the Company for officers of comparable rank;
(c) a non-refundable payment in the amount of One Hundred Thousand Dollars
($100,000) payable, at the option of Employee, (i) in cash at the closing of the
Merger or (ii) into the Plan (as defined below) as consideration for entering
into this Agreement;
(d) payments from the Xxxxxx Bailly Consulting, Inc. Deferred Compensation
Plan (the "Plan") on the first, second and third anniversary dates of
the Commencement Date in amounts equal to one-seventh (1/7) of the
funds vested under the Plan on such dates;
(d) a grant of options to purchase 15,000 shares of common stock of Xxxxxx
Xxxxxx, Inc. on the Commencement Date, with an exercise price at the fair market
value on the Commencement Date, vesting in equal amounts over four years
commencing on the first anniversary date of the Commencement Date, with a term
of ten (10) years, and subject to the terms and conditions of the Xxxxxx Bailly
Employee Incentive and Non-Qualified Stock Option and Restricted Stock Plan or
any successor plan; and
(e) from time to time Employee shall also be eligible to receive options to
purchase Common Stock pursuant to the terms of the Xxxxxx Xxxxxx Employee
Incentive and Non-Qualified Stock Option and Restricted Stock Plan or any
successor plan, and in the amounts determined by, and subject to the terms and
conditions of, the Stock Option Committee of the Board of Directors, or the
Board of Directors, of Xxxxxx Bailly.
5. Benefits; Reimbursement of Expenses; Vacation.
During the Term, Employee shall also be eligible to:
(a) participate in all of the benefit programs which are currently or may
hereafter be provided by the Company, including, without limitation, all stock
option, pension, thrift, employee stock ownership, incentive, retirement, salary
continuance and health, life and disability insurance programs ("Benefit
Programs") in accordance with policies in effect for officers of comparable
rank; provided, that nothing in this Agreement shall require the Company to
create, continue or refrain from amending, modifying, revising or revoking any
Benefit Programs described herein. Employee shall be entitled to vacation,
holidays and personal days on the same basis as other officers of the Company
during the first and each subsequent twelve (12) month period during the Term;
(b) reimbursement by the Company of all expenses reasonably incurred by
him during the Term in connection with the performance of his duties,
including, without limitation, travel and entertainment expenses
reasonably related to the business or interests of the Company, upon
submission by him of written documentation of
such expenses; and
(b) the other benefits set forth in this Agreement.
6. Termination.
This Agreement may be terminated prior to the
expiration of its Term as follows:
(a) Automatically upon Employee's death;
(b) For "cause," which for purposes of this Agreement shall mean (A)
dereliction of duty by Employee which dereliction has not been cured
by Employee within thirty (30) days after written notice thereof has
been given to Employee by the Company, (B) Employee's willful
engagement in conduct materially injurious to the Company (which shall
not include conduct by Employee without malicious intent in the
ordinary course of business which results in financial loss to the
Company), (C) dishonesty of a material nature that relates to the
performance of Employee's duties under this Agreement, (D) Employee's
conviction for any misdemeanor that involves fraud, moral turpitude or
a material loss to the Company or any felony; or (E) failure by
Employee to perform or observe any of the material terms or provisions
of this Agreement which failure has not been cured by Employee within
thirty (30) days after written notice thereof has been given to
Employee by the Company;
(c) Upon the Company's failure to perform or observe any of the material
terms or provisions of this Agreement, and the continued failure of
the Company to cure such default within thirty (30) days after written
demand for performance has been given to the Company by Employee,
which demand shall describe specifically the nature of such alleged
failure to perform or observe such material terms or provisions.
Without limiting the generality of the foregoing, it is acknowledged
and agreed that Sections 4 and 5 of this Agreement are material
provisions of this Agreement;
(d) Upon notice from Employee upon the Company's failure to pay Employee
amounts under Section 4 when
due; and
(e) Upon permanent disability of Employee, as such term is defined in the
disability insurance
programs of the Company; and
(f) Upon resignation of Employee.
7. Effect of Termination.
(a) In the event of the termination of this Agreement pursuant to
paragraphs (a) and (f), the Company shall be under no obligation to
Employee, except to pay his or her accrued and unpaid Base Salary,
Bonus and paid leave payments to the date of termination, any vested
portion of the Plan and any vested but unexercised options under the
Option Plan, and Employee shall not be entitled to receive any Base
Salary or Bonus after the date of termination, any unvested portion of
the Plan, and any unvested options under the Option Plan.
(b) In the event of the termination of this Agreement pursuant to
paragraph (b), the Company shall be under no obligation to Employee,
except to pay his or her accrued and unpaid Base Salary, Bonus and
paid leave payments to the date of termination, and any vested portion
of the Plan, and Employee shall not be entitled to receive any Base
Salary or Bonus after the date of termination, any unvested portion of
the Plan, any vested but unexercised options under the Option Plan,
any unvested options under the Option Plan or any shares that have not
yet been issued upon exercise of an option under the Option Plan.
(c) In the event of the termination of this Agreement by Employee or the
Company pursuant to paragraph (c), (d) or (e) of Section 6, Employee
shall be entitled to receive all of the compensation and benefits
provided herein until the later of (i) the date the Term would have
expired absent any termination of this Agreement, or (ii) six (6)
months from the effective date of such termination (such later date
being herein referred to as the "Final Payment Date"). In the event of
any termination pursuant to Section 6 (e), any payments pursuant to
this Section 7 shall be reduced by any disability benefits received by
the Employee pursuant to any disability insurance provided by the
Company or purchased by the Employee (the cost of which is reimbursed
by the Company). If the Company and Employee shall become involved in
a dispute relating to any alleged breach of this Agreement by the
Company or Employee, and if Employee prevails (by judgment, settlement
or otherwise) in such dispute, the Company shall reimburse Employee
for all reasonable costs (including reasonable fees and disbursements
of counsel) incurred by him in connection with such dispute upon
presentation to the Company of evidence of such costs.
8. Non-compete and Other Restrictive Covenants.
(a) Employee covenants and agrees that Employee will not, at all times
during the Term and for a period of one (1) year after the termination
or expiration of this Agreement, directly or indirectly in competition
with the business of the Company or its affiliates: (i) solicit any
business or contracts from any customers of the Company or its
affiliates, any past customers of the Company or its affiliates, or
any prospective customers (as defined below) of the Company except as
necessitated by Employee's position with the Company and then only in
furtherance of the business interests of the Company or its
affiliates; (ii) induce or attempt to induce any such customer to
alter its business relationship with the Company or its affiliates
except as necessitated by Employee's position with the Company and
then only in furtherance of the business interests of the Company or
its affiliates; (iii) solicit or induce or attempt to solicit or
induce any employee of the Company or its affiliates to leave the
employ of the Company or any of its affiliates for any reason
whatsoever or hire any employee or any person who was an employee of
the Company or its affiliates within the twelve (12) month period
prior to such hiring; or (iv) engage in, participate in, represent in
any way or be connected with, as officer, director, partner, owner,
employee, agent, sales representative, distributor, independent
contractor, consultant, proprietor, stockholder (except for the
ownership of a less than five percent (5%) stock interest in a
publicly traded company) or otherwise, any business or activity
competing directly or indirectly with the business of the Company or
its affiliates (or any part thereof) anywhere in the United States
where the Company (or any subsidiary or affiliate) is engaged or has
reasonably firm plans to engage in business. Any of the obligations of
Employee under this Section 8(a) may be waived by the Company upon
written notice to that effect given to Employee.
For purposes of this Section 8(a), (A) a "prospective
customer" shall mean potential customers which the
Company or any of its affiliates has solicited concerning potential business at
any time during the one (1) year period preceding the expiration or termination
of the Term; and (B) the "business of the Company or its affiliates" shall be
deemed to be the provision of management and consulting services to government
and commercial clients and any other business or activities in which the Company
or its affiliates is engaged.
(b) Employee covenants and agrees that Employee will not, for two (2)
years after the termination or expiration of this Agreement, without
the prior written consent of the Board of Directors or a person
authorized by the Board of Directors, directly or indirectly, reveal
or disclose to third parties any information concerning or related to
the business or affairs of the Company or any of its affiliates,
including, but not limited to services, software products, marketing
plans and business strategies, which is considered confidential by the
Company and which is not, at the time in question, generally available
to the public ("Confidential Information"). The Company shall have no
obligation to specifically identify any information as to which the
protection of this Section 8(b) extends by any notice or other action,
and Employee agrees that all information not available or known to the
public relating to the business of the Company or its affiliates, and
their software, products, services, marketing plans and/or business
strategies shall be deemed Confidential Information.
(c) The covenants contained in this Section 8 shall be construed as a
series of separate and severable --------- covenants. Employee and the
Company agree that if in any proceeding, the tribunal shall refuse to
enforce fully any covenants contained herein because such covenants
cover too extensive a geographic area or too long a period of time or
for any other reason whatsoever, any such covenant shall be deemed
amended to the extent (but only to the extent) required by law. Each
party acknowledges and agrees that the services to be rendered by
Employee to the Company hereunder are of a special and unique
character. Each party shall have the right to injunctive relief, in
addition to all of its other rights and remedies at law or in equity,
to enforce the provisions of this Agreement.
(d) The obligations of Employee under this Section 8 shall survive the
termination or expiration of the Term.
9. Proprietary Rights. (a) At all times during the Term, all right,
title, and interest in all copyrightable material which Employee shall
conceive or originate, either individually or jointly with others, and
which arise out of the performance of this Agreement, will be the
property of the Company and are by this Agreement assigned to the
Company along with ownership of any and all copyrights in the
copyrightable material. At all times during the Term, Employee agrees
to execute all papers and perform all other acts necessary to assist
the Company to obtain and register copyrights on such materials in any
and all countries, and the Company agrees to pay expenses associated
with such copyright registration. Works of authorship created by
Employee for the Company in performing his responsibilities under this
Agreement during the Term shall be considered "works made for hire" as
defined in the U.S. Copyright Act. In addition, Employee hereby
assigns to the Company all proprietary rights including, but not
limited to, all patents, copyrights, trade secrets and trademarks
Employee might otherwise have, by operation of law or otherwise, in
all inventions, discoveries, works, ideas, information, knowledge and
data related to Employee's access to confidential information of the
Company during the Term.
(b) All know-how and trade secret information conceived or originated by
Employee which arises out of the performance of his obligations or
responsibilities under this Agreement during the Term shall be the
property of the Company, and all rights therein are by this Agreement
assigned to the Company.
(c) If, during the Term, Employee is engaged in or associated with the
planning or implementing of any project, program or venture involving
the Company and a third party or parties all rights in such project,
program or venture shall belong to the Company. Except as formally
approved by the Company's Board of Directors, Employee shall not be
entitled to any interest in such project, program or venture or to any
commission, finder's fee or other compensation in connection therewith
other than the compensation to be paid to Employee as provided in this
Agreement.
(d) Upon termination of the Term of this Agreement, Employee shall deliver
promptly to the Company all records, manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, data,
tables, calculations, customer and prospective customer lists, and
copies of all of the foregoing, which are the property of the Company,
and all other property, trade secrets and confidential information of
the Company, including, but not limited to, all documents which in
whole or in part contain any trade secrets or confidential information
of the Company, which in any of these cases are in his possession or
under his control.
(e) At all times during the Term and thereafter, Employee further agrees
to execute and deliver any additional documents, instruments,
applications, oaths or other writings necessary or desirable to
further evidence the assignments described in this Section 9
("Supporting Documents"). If Employee fails or refuses to execute or
deliver any Supporting Documents, Employee hereby agrees for himself
and his successors, assigns, donees, executors, administrators,
transferees and personal representatives, to the fullest extent
permitted by law, that the Chief Executive Officer of the Company
shall be appointed, and the same is hereby irrevocably appointed,
Employee's attorney-in-fact with full authority to execute Supporting
Documents and perform all other acts necessary to further evidence
such assignments.
(f) The obligations of Employee under this Section 9 shall survive the
termination or expiration of the Term.
10. Notice.
All notices or other communications which may be or are required to be
given, served or sent by any party to any other party pursuant to this
Agreement shall be in writing and shall be mailed by first-class,
registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery, facsimile or telegram,
addressed as follows:
(a) If to the Company:
Xxxxxx Xxxxxx Consulting, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X.X. Xxxxxxx, Vice President and General Counsel
(b) If to Employee:
Xxxxxxx Xxxxxx
00000 Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (___) ____________
Each party may designate by notice in writing a new address to which any notice
or other communication may thereafter be so given, served or sent. Each notice
or other communication which shall be mailed or transmitted in the manner
described above, shall be deemed sufficiently given, served, sent, delivered and
received for all purposes at such time as it is delivered to the addressee (with
the return receipt, the delivery receipt or the affidavit of messenger being
deemed conclusive evidence of such delivery) or at such time as delivery is
refused by the addressee upon presentation.
11. Severability.
If any part or any provision of this Agreement shall
be invalid or unenforceable under applicable law, such
part shall be ineffective to the extent of such invalidity or unenforceability
only, without in any way affecting the remaining parts of such provision or the
remaining provisions of this Agreement.
12. Survival.
It is the express intention and agreement of the parties hereto that all
covenants, agreements and statements made by any party in this
Agreement shall survive the execution and delivery of this Agreement,
and that certain covenants, agreements and statements shall survive
the termination or expiration of the Term to the extent specified in
Sections 6, 7, 8 and 9 hereof.
13. Waiver.
Neither the waiver of any of the parties hereto of any breach of or default
under any of the provisions of this Agreement, nor the failure of any
of the parties, on one or more occasion, to enforce any of the
provisions of this Agreement or to exercise any right or privilege
hereunder, shall thereafter be construed as a waiver of any subsequent
breach or default, or as a waiver of any such provisions, rights, or
privileges hereunder.
14. Binding Effect.
This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and, subject to
Section 19 hereof, their respective heirs, devisees, executors, administrators,
legal representatives, successors and assigns. As used in this Agreement, the
term "successor" shall include any person, firm, corporation or other business
entity which at any time, whether by merger, purchase or otherwise, acquires all
or substantially all of the assets or business of the Company.
15. Entire Agreement.
As of immediately prior to the Effective Time of the Merger, this
Agreement (a) represents the entire understanding and agreement among
the parties hereto with respect to the subject matter hereof and,
supersedes, cancels and terminates all other negotiations, agreements,
arrangements and understandings, oral or written, between such parties
with respect thereto, (b).constitutes the sole agreement between the
parties with respect to this subject matter, and (c) supersedes,
cancels and terminates all prior negotiations, agreements,
arrangements and understandings, oral or written, with respect to (i)
the Employee's employment with TB&A or any affiliate of TB&A, and (ii)
any other obligations or liabilities of the Employee with TB&A or any
affiliate of TB&A.
16. Amendment.
No amendment or modification of this Agreement and no waiver hereunder or
thereunder shall be valid or binding unless set forth in writing, duly
executed by the party against whom enforcement of the amendment,
modification or waiver is sought.
17. Governing Law.
This Agreement shall be subject to and governed by the laws of the
Commonwealth of Virginia (excluding the choice of law rules thereof).
18. Forum.
Subject to Section 20, at all times during the Term, (a) Employee
irrevocably submits to the exclusive jurisdiction of any Virginia
court or Federal court sitting in Virginia, in any action or
proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby that is not subject to arbitration,
and Employee irrevocably agrees that all claims in respect of any such
action or proceeding may be heard and determined in such Virginia or
Federal court; (b) Employee irrevocably consents to the service of any
and all process in any such action or proceeding by the mailing of
copies of such process to Employee at his address specified in Section
10; (c) Employee irrevocably confirms that service of process out of
such courts in such manner shall be deemed due service upon him for
the purposes of such action or proceeding; (d) Employee irrevocably
waives (i) any objection he may have to the laying of venue of any
such action or proceeding in any of such courts, or (ii) any claim
that he may have that any such action or proceeding has been brought
in an inconvenient forum; and (e) Employee irrevocably agrees that a
final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Section 18 shall
affect the right of any party hereto to serve legal process in
any manner permitted by law.
19. Assignment.
This Agreement shall not be assignable by either party hereto without the
prior written consent of the other party hereto, except that without
securing such consent the Company may assign its rights and
obligations hereunder to any successor entity to the Company by
operation of law or otherwise.
20. Arbitration.
In the event of any dispute between the parties under or
relating to this Agreement or otherwise relating to Employee's employment by the
Company, such dispute shall be submitted to and settled by arbitration in
Arlington, Virginia, by one arbitrator but otherwise in accordance with the
rules and regulations of the American Arbitration Association (AAA) then in
effect. The arbitrator shall have the right and authority to determine how his
or her award or decision as to each issue and matter in dispute may be
implemented or enforced. Any decision or award or decision may be entered in any
court of competent jurisdiction in the Commonwealth of Virginia or elsewhere;
and the parties hereto consent to the application by any party in interest to
any court of competent jurisdiction for confirmation or enforcement of such
award.
21. Headings.
Headings contained in this Agreement are inserted for convenience of
reference only, shall not be deemed to be a part of this Agreement for
any purpose, and shall not in any way define or affect the meaning,
construction or scope of any of the provisions hereof.
22. Execution in Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original hereof, and all of which together shall
constitute one and the same instrument.
23. Termination of Merger Agreement.
This Agreement shall automatically terminate and be of no force or effect
upon the termination of the Merger Agreement.
17
IN WITNESS WHEREOF, the undersigned have duly executed this
Employment Agreement, or have caused this Employment Agreement to be duly
executed on their behalf, as of the day and year first hereinabove set forth.
XXXXXX XXXXXX CONSULTING, INC.
By: /s/ Xxxxx-Xxxxxx Xxxxxx
Name: Henri Xxxxxx Xxxxxx
Title: Chief Executive Officer
XXXXXXX XXXXXX
/s/ XXXXXXX XXXXXX
